Scott v. Purser Truck Sales, Inc.

• Decision Date: 18 February 1991
• Docket Number: No. A90A2024,A90A2024
• Citation: 198 Ga.App. 611,402 S.E.2d 354
• Parties: SCOTT v. PURSER TRUCK SALES, INC. et al.
• Court: Georgia Court of Appeals

Page 354

402 S.E.2d 354

198 Ga.App. 611

SCOTT v. PURSER TRUCK SALES, INC. et al.

No. A90A2024.

Court of Appeals of Georgia.

Feb. 18, 1991.

Lonzy F. Edwards, Macon, for appellant.

Sarah E. Stevenson, Macon, for appellees.

Lonz Radford, pro se.

SOGNIER, Chief Judge.

Joe Scott brought suit against Purser Truck Sales, Inc. alleging his automobile was negligently destroyed while in Purser Truck's possession and control. Purser Truck answered, denying that the car had been in its possession or control when damaged, and counterclaimed to recover the balance due it as seller of the car under the conditional sales contract and security agreement executed by the parties. Purser Truck then brought a third party complaint against Lonz Radford, alleging that the car had been in the possession and control of Radford, an independent contractor, for purposes of repair when it was damaged, and seeking to hold Radford liable for any sums Scott might recover against Purser Truck. After a bench trial, which was not reported and for which no transcript is present in the record, see OCGA § 5-6-41, the Civil Court of Bibb County found against Scott on his claim, thereby assessing no damages against Radford, and found in favor of Purser Truck on its counterclaim. Scott appeals. See Ga.L.1955, pp. 2552, 2565, § 26.

1. Appellant contends the trial court erred by finding in favor of appellee because appellee, as bailee, failed to prove it exercised the proper duty of care to protect appellant's car. Appellant, as the party asserting error, has the burden of affirmatively showing such error by the record. See Taylor v. Colwell Mtg. Corp., 187 Ga.App. 397, 398, 370 S.E.2d 520 (1988). Appellant argues that the findings contained in the trial court's judgment support his argument. In its order, the trial court specifically found that appellant "enlisted the assistance" of appellee in making repairs to the car, that appellee "obtained the services" of Radford "for the purposes of making said repairs," and that the car was in Radford's possession when it was destroyed. The trial court then found that "[t]here was no evidence submitted at trial or in supporting documents that demonstrated any negligence on the part of [appellee]" in regard to the destruction of the car. Subsequently, the order sets forth that the trial court "specifically finds that [appellant] did not carry [his] burden of proof in presenting any evidence of negligence or failure to use ordinary care and diligence by [appellee] in maintaining the property that was given to [it]."

We reverse. OCGA § 9-11-52(a), which is applicable to the trial court here, see Ga.L.1955, pp. 2552, 2559, §§ 16, 17, provides that findings of trial courts in nonjury trials "shall not be set aside unless clearly erroneous." See generally Commonwealth Fin. Corp. v. Sherrill, 197 Ga.App. 403, 404-405(1), 398 S.E.2d 438 (1990). This principle does not apply, however, where it appears that the trial court's findings and judgment are based on an error of law. See generally Kingston Dev. Co. v. Kenerly, 132 Ga.App. 346, 349(1), 208 S.E.2d 118 (1974). We acknowledge initially that the trial court's findings arguably could be construed as establishing that appellee, although having "obtained the services" of Radford, was not in possession of appellant's car at the time of its destruction for the purposes of a bailment. See Davidson v. Ramsby, 133 Ga.App. 128, 131(5), 210 S.E.2d 245 (1974) ("[t]o create a bailment, express or implied, there must be an actual or constructive delivery of the goods with actual or constructive possession in the bailee, exclusive and independent of the bailor and all other persons. [Cits.]"). However, we cannot here apply the "right for any reason" rule to affirm the judgment in favor of appellee on the basis that no bailment existed, because despite the ambiguity of the trial court's findings on the issue of possession of the bailed item, the language employed by the trial court as a whole establishes that its judgment was based on the existence of a bailment between appellant and appellee, and we are thus unable to construe the facts otherwise.

Given the existence of a bailment, we agree with appellant that the language used by the trial court in its order manifests an incorrect application of the law of bailment. Because a bailee is bound to use ordinary care and diligence to protect the thing bailed, see OCGA § 44-12-43, a presumption of negligence arises where possession is shown in the bailee at the time of damage to the property....